Liability of Municipalities because of heavy Rains, Backwater and uncontrolled Run-off of Precipitation – Part 2

Abstract

In the first part of the article (issue 10/2015, gwf-Wasser|Abwasser), we already established that – according to the jurisdiction of the Bundesgerichtshof – a canalisation, which is dimensioned for a calculated rainfall of one year, is not sufficient. As a general rule, damages due to an insufficient canalisation have to be compensated by the municipalities. Apart from that, the first part dealt with the obligation of landowners to install backing-up valves, whose missing excludes the municipal liability wholly or at least partially. The second part concentrates inter alia on exclusions of liability for damages caused by backwater in a municipal ordinance. Such an exclusion of liability is only effective regarding a quasi-contractual basis for a claim, it is not possible to exclude the statutory liability. Besides that, the article deals with the topic of whether and under which circumstances a heavy rain event can be classified as force majeure, which excludes the liability. The jurisdiction is inconsistent in this regard. The last part of the article highlights which factors have to be considered in communal planning of land-use areas to avoid being liable for water damages due to flooding. Taking the topographical characteristics of the surrounding areas into account is of vital importance. As in the previous part of the article, we explain these aspects with the help of case studies and with regard to the relevant statutes.